Citation Nr: 1504507
Decision Date: 01/30/15 Archive Date: 02/09/15
DOCKET NO. 13-03 199A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
THE ISSUES
1. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for multiple sclerosis, for substitution or accrued benefits purposes.
2. Entitlement to service connection for multiple sclerosis, for substitution or accrued benefits purposes.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
WITNESSES AT HEARING ON APPEAL
The appellant and her daughter
ATTORNEY FOR THE BOARD
S. M. Marcus, Counsel
INTRODUCTION
The Veteran served on active duty from September 1990 to September 1994. He died in June 2012 and the appellant is his surviving spouse.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.
The Veteran then initiated an appeal of this claim by filing a notice of disagreement (NOD) in June 2011 during his lifetime. The Veteran died in June 2012 prior to a Statement of the Case (SOC) being issued by the RO. The SOC was issued in November 2012. It is unclear whether the RO was aware of the Veteran's death at that point. In February 2013, however, the appellant submitted a substantive appeal Form 9, indicating the Veteran died of advanced multiple sclerosis "last year." In an April 2013 letter, the RO allowed the appellant to "reactivate" the appeal and certified the claim to the Board with the appellant listed as the substituted claimant. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West 2014)). Such request must be filed not later than one year after the date of the veteran's death. Id. As provided in the law, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a)...." Id.
In light of the procedural history in this case, the Board finds the Veteran's surviving spouse has been substituted for the Veteran. The appellant and her daughter testified at a video hearing before the undersigned Veterans Law Judge (VLJ) in June 2013 and the transcript is of record.
The issues seeking dependency indemnity compensation (DIC), to include nonservice-connected death pension, as well as whether there is clear and unmistakable error (CUE) with an October 28, 1976 rating decision denying entitlement to service connection for multiple sclerosis have been raised by the record. Although the RO denied the CUE claim in an April 2011 rating decision, the appellant raised the issue again in subsequent statements, most recently on her 2013 substantive appeal Form 9. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
FINDINGS OF FACT
1. The Veteran's multiple sclerosis (MS) claim was denied during his lifetime in an unappealed October 1976 rating decision finding no incurrence of MS in-service or within 7 years of separation from service.
2. Evidence received since the October 1976 rating decision is new and raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for MS, for substitution or accrued benefits purposes.
3. Resolving all reasonable doubt in favor of the appellant, the Veteran's MS was most likely incurred on or before September 4, 1971, within seven years of separation from the military.
CONCLUSIONS OF LAW
1. The October 1976 rating decision that denied the claim of entitlement to service connection for MS is final. 38 U.S.C. § 4004(b) (1976); 38 C.F.R. §§ 19.104 (1976); currently, 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).
2. New and material evidence has been received since October 1976, and the MS claim, is reopened for substitution or accrued benefits purposes. 38 U.S.C.A. § 7105, 5121, 5121A (West 2014); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2014).
3. The criteria for entitlement to service connection for MS, for substitution or accrued benefits purposes, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 5121, 5121A (West 2014), 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
VA has met all statutory and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326. In light of the full grant of benefit sought here, moreover, any deficiency in notice or assistance is deemed harmless error.
Substitution versus Accrued Benefits
Initially, the Board notes that the issues before the Board here have been recharacterized as for substitution or accrued benefits purposes. Although it may appear that, because the appellant's claims are now before the Board, it does not make a difference whether they are adjudicated as accrued benefits claims or as requests for substitution. There is, however, a significant difference. When adjudicating the former, only the evidence of record at the time of the Veteran's death may be considered as the basis for a determination on the merits of a claim. By contrast, when a properly qualified substitute claimant "continues the pending claim in the footsteps of the veteran" after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim.
Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence. Thus, it is to the appellant's advantage to have her claims adjudicated as a substitute claimant pursuant to 38 U.S.C.A. § 5121A, rather than as they were originally adjudicated.
In other words, because the appellant is a substitute claimant in this case, the Board will consider all evidence submitted in this case, to include evidence submitted both prior to and after the Veteran's death.
New and Material Evidence (Multiple Sclerosis)
During his lifetime, the Veteran originally sought entitlement to service connection for multiple sclerosis (MS) in May 1976, which was denied in an October 1976 rating decision finding no medical evidence of in-service incurrence of MS or incurrence within 7 years of separation from the military.
The Veteran did not appeal the decision nor was any material evidence or correspondence received by the RO within one year of the October 1976 rating decision. Therefore, it is final. 38 U.S.C. § 4004(b) (1976); 38 C.F.R. §§ 19.104 (1976); currently, 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).
Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.
In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id.
At the time of 1976 denial, the record contained the Veteran's service treatment records, which were silent as to any complaints or treatment related to MS, VA and private treatment records indicating suspected MS as early as 1972, but no earlier.
Since the 1976 decision, the record now contains letters from the Veteran to the appellant dated in March 1967, VA medical opinions dated October 2010, November 2010, December 2010, February 2011, and November 2012, and various lay statements from the appellant and the Veteran's siblings dated from 2010 to 2013.
The new lay statements, including letters dated March 1967, indicate symptoms observed by the Veteran or by family members prior to 1972, to include leg soreness, leg burning, fatigue, memory, and concentration problems. Two of the medical opinions submitted since the 1976 decision opine that these symptoms are too vague to attribute to MS prior to 1972 whereas two of the medical opinions render the opposite conclusion, that the Veteran's MS was likely present prior to 1972 or, more specifically, within the 7 years following his separation from the military.
Again, the Veteran's MS claim was previously denied because there was no indication he incurred MS in service or during the presumptive seven year period following his separation from service. The new evidence now reflects symptoms dating within the seven years following the Veteran's separation from service as well as at least some medical opinions attributing those symptoms to his subsequent MS diagnosis. As such, the evidence is new and material warranting the reopening of the claim seeking entitlement to service connection for MS, now for substitution and accrued benefits purposes.
Service Connection (Multiple Sclerosis)
Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir 2009).
In the case of multiple sclerosis (MS), service connection may also be granted as a matter of presumption when manifested to a compensable degree within seven years of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The minimum rating for multiple sclerosis (MS) under the applicable diagnostic code is 30 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8018. Accordingly, if the Veteran manifested MS within seven years of separation from the military, in this case by September 4, 1971, then service connection is warranted as a matter of presumption.
The appellant maintains that the Veteran first incurred MS at some point on or prior to September 4, 1971 and therefore is entitled to service connection for MS as a matter of presumption.
The facts in this case are not in dispute. It is undisputed that the objective medical evidence does not support MS prior to February 1972 at the earliest, which is approximately 7.5 years after the Veteran's separation from service. It is also undisputed that the Veteran complained of symptoms prior to this date, to include leg pain and fatigue. The pertinent inquiry, then, is whether these subjective symptoms were indicative of MS as of September 4, 1971 or earlier (i.e., within seven years after separation from the military). Resolving all reasonable doubt in favor of the appellant, the Board concludes they were.
In October 1972, a private medical letter indicates the Veteran presented complaining of vision in one eye and difficulties with his legs, including a "burning" sensation, for six months duration. He was later hospitalized in December 1972 indicating a 9 to 10 month duration of these symptoms and MS was suspected. Subsequent records continue to show a diagnosis and treatment for MS.
Prior to October 1972, in contrast, medical evidence is scarce. The Veteran's service treatment records are silent as to any complaints related to the legs or fatigue. The Veteran was treated for epigastric pain in 1964, diagnosed as a peptic ulcer. The Veteran was also hospitalized in 1969 following a head injury where he was hit with a wooden beam. Nothing in those records suggests or otherwise suspects MS. A private orthopedic physician, Dr. Halfmann, indicated in a July 1976 letter that he did treat the Veteran in 1970, but it was related to a "traumatic condition" having absolutely no relation to MS.
The totality of the medical evidence dates objective evidence of MS at February 1972, but no earlier. Indeed, it is compelling that at the time of the October 1972 treatment and December 1972 hospitalization, the Veteran confirmed his symptoms of vision loss and burning legs began in February 1972, but he was "healthy" prior to that time.
The appellant, on the other hand, claims witnessing the Veteran's struggles with his legs, concentration, and memory prior to February 1972. She believes his memory lapses and concentration problems is probably why he provided an inaccurate history of symptoms in 1972 when he went to see someone for his vision loss. Indeed, despite the absence of records, the appellant maintains the Veteran received treatment for odd symptoms, such as burning in the legs, pain in the legs from the waist down, fatigue, problems with concentration, and other such symptoms immediately after service in 1964.
In support of this contention, she submitted letters she received from the Veteran in 1967, a mere three years after separation from the military. Therein, the Veteran notes pain in the legs, fatigue, and making an appointment to see a doctor.
The Veteran's sister indicates in a 2010 statement that she recalls her brother having problems standing and walking at her wedding ceremony in 1970. Other family members, to include the appellant and the Veteran's other siblings also recall the Veteran's symptoms of burning leg pain from 1964 to 1971.
There are several medical opinions of record. VA medical opinions were obtained in December 2010 and October 2012. Both of these examiners concluded the Veteran did not likely have MS prior to February 1972. The VA examiners acknowledged the Veteran's reported symptoms of fatigue and soreness of the lower extremities in the 1967 letters, but found the symptoms "too vaguely described, and too generic a complaint to confidently associate this with a disease such as MS." It does not appear the VA examiners considered or reconciled the other lay statements from the appellant and the Veteran's siblings regarding observed symptoms prior to 1972.
In contrast, a VA physician indicated in a November 2010 outpatient treatment record that the Veteran's symptoms of the underlying disease (MS) "were probably present within 7 years of his military service." This opinion was clarified in February 2011 indicating that because the Veteran had symptoms such as leg pain prior to 1972, and he now (as of 2011) has the same symptoms which are attributable to MS, then those symptoms recorded prior to 1972 were "at least as likely as not symptoms of his current MS." Also of record is an October 2010 opinion from a VA registered nurse (RN) indicating "from documentation obtained, [it] appears [the Veteran] more likely than not had MS well within 7 years of his military service."
In short, the medical evidence objectively dates the Veteran's treatment and complaints of symptoms later attributed to MS as February 1972, but no earlier. There are lay statements, including letters written by the Veteran in 1967, indicating he had symptoms of leg pain and fatigue prior to 1972. Some medical professionals opined that these pre-1972 complaints are "too vague" to attribute to the later diagnosed MS whereas other medical professionals find the complaints consistent with the later diagnosis of MS. Even without taking into consideration the lay evidence, it is clear the Veteran developed MS within 7.5 years of his separation from the military.
The Board finds the evidence, at the very least, in equipoise. The objective evidence puts the Veteran's MS diagnosis at 7.5 years after his separation from the military, very close to the presumptive period. The subjective complaints indicated by the Veteran in 1967 letters and by family members who knew him at that time put symptoms well within the 7 year presumptive time frame. Although it is plausible that the Veteran had MS prior to the official testing and diagnosis, an exact time frame is unclear here. In light of the totality of the medical and lay evidence, the Board finds the appellant is entitled to the benefit of the doubt. As such, entitlement to service connection for MS, for substitution or accrued benefits purposes, is warranted in this case.
ORDER
New and material evidence having been submitted, the claim seeking entitlement to service connection for multiple sclerosis, for substitution or accrued benefits purposes, is reopened and to that extent the appeal is granted.
Entitlement to service connection for multiple sclerosis, for substitution or accrued benefits purposes, is granted.
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs